59 Iowa 171 | Iowa | 1882
I. The ground of demurrer to the petition is that the action is at law and that it should have been brought in the Probate Court. The Circuit Court has common law jurisdiction and also sits as a Probate Court. The action was therefore brought before the right judge and in the right court, but the complaint is that it was not entitled and brought as an action or claim in probate. In Ashlock v. Sherman, 56 Iowa, 311, it was held, such question could not be raised by demurrer, but that the only remedy was to move the court to transfer the cause to the proper docket. Following that case this cause must be reversed.
It is said by counsel that there is a conflict between the case cited and Hutton v. Laws, 55 Iowa, 710; but we do not think this is so. Had a motion to transfer this cause been made and sustained the effect would have been precisely the same as the action of the court in Hutton v. Laws. In that case the court on its own motion directed the administrator to account to the Probate Court. This amounted
The effect of sustaining the demurrer in this case would be to abate the action and compel the plaintiff to commence anew. Counsel for the appellee insist the action is not against William Green as administrator, but against him personally, and therefore the demurrer was properly sustained. It is sufficient to say no such point is made in the demurrer. Had it been the plaintiff could have amended its petition, if so advised, in the Circuit Court. The point cannot be raised for the first time in this court.
Reversed.
